Citation Nr: 1013180
Decision Date: 04/07/10 Archive Date: 04/14/10
DOCKET NO. 08-33 216 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Whether there was clear and unmistakable error in a
rating decision in September 2005 by the Regional Office,
denying service connection for posttraumatic stress
disorder.
2. Entitlement to an effective date earlier than August 29,
2007, for the grant of service connection for posttraumatic
stress disorder.
REPRESENTATION
Veteran represented by: AMVETS
ATTORNEY FOR THE BOARD
Russell P. Veldenz, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty
from June 1968 to April 1972 and November 1990 to March
1991.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decisions in December 2007 and in
October 2009 of a Department of Veterans Affairs (VA)
Regional Office (RO or Agency of Original Jurisdiction).
For the reason expressed below, the appeal is REMANDED to
the RO via the Appeals Management Center in Washington, DC.
REMAND
In August 2007 and on the record, the Veteran executed a
power of attorney in favor of AMVETS.
In the rating decision in December 2007, the RO granted
service connection for posttraumatic stress disorder and
assigned an effective date of August 19, 2007, the date of
receipt of the application to reopen the claim of service
connection. In his notice of disagreement to the effective
date of service connection, the Veteran raised the claim of
clear and unmistakable error in a rating decision in
September 2005 by the RO, denying his initial claim of
service connection for posttraumatic stress disorder.
In the rating decision in October 2009, the RO adjudicated
the claim of clear and unmistakable error in the rating
decision of September 2005. In November 2009, the Veteran's
representative, AMVETS, filed a notice of disagreement to
the RO's determination that the rating decision in September
2005, denying service connection for posttraumatic stress
disorder, was not clearly and unmistakably erroneous.
38 C.F.R. § 20.301(a) (A substantive appeal may be filed by
a claimant's representative if a proper Power of Attorney is
on record.).
As the RO has not had the opportunity to issue a statement
of the case addressing the claim of clear and unmistakable
error in the rating decision in September 2005 by the RO,
denying service connection for posttraumatic stress
disorder, the Board is required to remand the claim to the
RO. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999).
As the claim for an earlier effective date is inextricably
intertwined with the claim of clear and unmistakable error,
a decision on the claim for an earlier effective date is
deferred until the claim of clear and unmistakable error is
finally adjudicated. 38 C.F.R. § 3.160(d) (A claim, which
has been allowed or disallowed by the agency of original
jurisdiction, the action having become final by the
expiration of 1 year after the date of notice of an award
or disallowance, or by denial on appellate review, whichever
is the earlier.).
Accordingly, the case is REMANDED for the following action:
1. Furnish the Veteran a statement of
the case on the claim of clear and
unmistakable error in the rating
decision of September 2005 by the
Agency of Original Jurisdiction,
denying service connection for post
traumatic stress disorder. In order to
perfect an appeal of the claim, the
Veteran must still timely file a
substantive appeal.
2. After the above development, return
the claim for an effective date earlier
than August 29, 2007, for the grant of
service connection for posttraumatic
stress disorder and, if the appeal is
perfected, the claim of clear and
unmistakable error in the rating
decision of September 2005 by the
Agency of Original Jurisdiction,
denying service connection for post
traumatic stress disorder.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).